Trade Promotion Authority Formerly Known as Fast Track: Building Common Ground on Trade Demands More Than a Name Change

Shapiro, Hal, Brainard, Lael, The George Washington International Law Review

Fast track trade promotion authority renewal has become the premier vehicle for airing America's ambivalence about trade and globalization. The most recent renewal-in August 2002-folloioed an eight-year stalemate in Congress. Opponents decry fast track as a blank check for the president to pursue trade agreements that undermine hard won social and environmental protections. Proponents portray fast track as a litmus test of America's leadership on trade and as a patriotic imperative. Fast track was intended to be neither. It was conceived as a mundane procedural deal: Congress would streamline its approval process into an up-or-down vote to enhance the president's credibility in negotiating complex multilateral trade agreements in return for enhanced congressional oversight.

The bruising debate over renewing fast track in 2002 and the unprecedented razor-thin voting margins in the House of Representatives underscore the need for a new approach that can command bipartisan common ground, which is the ultimate guarantor of U.S. credibility in international negotiations. A return to first principles is necessary to determine the most promising basis for cooperation between the president and Congress in advancing America's interests on trade. The real power of fast track is the underlying political compact between Congress and the president rather than its statutory guarantees, which are technically quite fragile. The convention of legislating a generalized but time-limited grant of fast track invites a regular, heated debate in the abstract over whether trade is good or bad and whether trade agreements should cover labor and environmental standards. This approach has led to severed failed attempts to restore fast track, culminating in its passage only after a divisive and partisan legislative battle, which has deepened the partisan divide and augurs ill for future progress on trade legislation.

It would be far better to weigh the overall benefits and costs to different segments of American society and to our international interests in concrete terms in the context of specific trade agreements. This more targeted approach can be achieved through three procedural fixes: strengthening congressional input into the negotiating process, seeking to limit the application of fast track to only those agreements whose complexity and scope clearly warrant it, and narrowing the grant of authority and the associated substantive guidance from Congress to particular trade agreements.

I. INTRODUCTION: THE DEBATE

Fast track has become the Moby Dick of American trade politics. Since 1994, when it was last in effect,1 presidents and trade supporters have expended enormous political capital zealously pursuing the great white whale. The hunt for this elusive quarry has several times come close to capsizing the ship of American trade policy.2

Soon after taking office, President Bush signaled that, like President Clinton before him, fast track (or "trade promotion authority" in the current lexicon) would be his top trade priority on the legislative agenda.3 When he signed the Trade Act of 2002 (2002 Act)4 into law on August 6, the President proclaimed it a "victory for the American economy" and said that "after eight years, America is back in the business of promoting open trade to build our prosperity and to spur economic growth."5 Republican leaders in the House of Representatives echoed the President's sentiments, calling the renewal of fast track "a grand victory for America's workers and businesses."6 Many business groups were also effusive, stating that "the legislation will usher in a new era of opportunity in the international marketplace."7

At the same time, a number of key trade policymakers and constituencies criticized the fast track bill with equal vigor. Representative Sander Levin (D-MI), the ranking Democratic member of the House Ways and Means Subcommittee on International Trade said: "It's a bad deal for American workers and businesses. …

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